Decision Date: June 12, 1996

Panel: Judith C. Lee

Keywords: Health Act – ss. 1, 5(1), 5(3), 25, 66, 67, 68; Municipal Act; Letters Patent; Sewage Disposal Regulation 411/85 – ss. 1, 3, 4(2), 4(3), 6, 7(2), ; Sewage Disposal Regulation 56/75 – s. 1.03(b); On-Site Sewage Disposal Policy – s. 6.7; privy; dry toilet or chemical toilet; fettering; discretion; delegation

This is an appeal by Mr. Harris from a decision of the Manager of the Environmental Health Program (“the Manager”) for the Capital Regional District (“CRD”) denying a permit to install a holding tank sewage disposal system on a lot essentially undeveloped except for a structure containing a toilet seat and a bucket. The Manager denied the permit as there was no evidence that the holding tank would be a temporary solution, the municipality had not enacted a maintenance by-law for holding tanks, and there were public health concerns relating to holding tanks. Mr. Harris appealed on the grounds of discrimination, that the holding tank constitutes a repair of alteration of the existing toilet facility, that the CRD improperly delegated its discretion to the municipality, and that refusing the permit was an improper exercise of discretion.

The Board dismissed the allegations of discrimination and improper delegation. It also found that the holding tank does not constitute a repair or alteration, nor did the health officer improperly exercise his discretion under the Health Act and its regulations. Although the policy requiring a by-law, on its face, fetters the Manager’s discretion, he properly considered the application and, on the facts, the Board agreed that the system should not be permitted for the property. The appeal was dismissed.